Episode 23: Legal Ins and Outs of Live Streaming with Mitch Jackson

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Stephanie Liu: All right. So, it should be streaming now. People are going to be settling in. Come on in, you guys. Alright you guys, if you're tuning in right now, go ahead and leave a comment. Say what's up. Let us know where you are watching from. I'm here in San Diego. Mitch, where are you at right now?

Mitch Jackson: We're here in Orange County, California. So, I’m about an hour north of you.

Stephanie Liu: Nice. Great. Look. Well, look at that. We've already got three live viewers. If you're already here, go ahead and leave a comment for us because Mitch and I, we've just been chatting it up a little bit, getting to know each other a little bit more. Let me go ahead and adjust my monitor real quick. Mitch, this is going to be fun. This is going to be a ton of fun.

Mitch Jackson: I'm looking forward to it. I'm sharing it out also right now.

Stephanie Liu: Great. Alright so, we have six live viewers. Thank you, everyone, for joining. Patti, so nice to see you here. Mitch, Patti's got some really amazing questions for you which I've already sent to you. If you saw the Facebook event, Patti was typing away all of her wonderful amazing questions. So, for those of you that are just joining, welcome to Episode #23: The Legal Ins and Outs When It Comes to Live Streaming. As many of you all know, live streaming is basically one of the hottest things right now. People are jumping in front of the camera talking about their business, their products, their books, their courses, all of that great stuff. But, sometimes, well actually all the time, you have to keep in mind of the legal stuff. And that's why I'm super-duper excited to have Mitch Jackson here on the show on Lights, Camera, Live. Say hey, Mitch!

Mitch Jackson: What is happening, everybody? I'm so excited to be here but I'm also really, really intimidated. And I'll tell you why because I had to follow you, Stephanie, at Social Media Day San Diego. She talked about a road map to live streaming. It was so intimidating. You were so good on stage. You shared massive value I didn't even want to take the microphone and get up there. That's how good you were. So, if I had a hat on, I would tip my hat to you because it was a pleasure watching you do your thing.

Stephanie Liu: Oh my god, okay.

Mitch Jackson: Now I'm really nervous.

Stephanie Liu: But that just makes me really nervous.

Mitch Jackson: Take it easy on me, counselor.

Stephanie Liu: Hey, Claudia, it's so great to see you here. And thank you, Claudia, for letting us know that the audio is doing just fine. So again, for those of you who don't know who Mitch Jackson is, Mitch Jackson is the man. He is an award-winning lawyer based in Orange County. And he has his very own a Facebook Live show called the TheShow.Live where he's actually had the opportunity to interview some really big names. For example, you might have heard of someone called Gary Vaynerchuk. Am I right?

Mitch Jackson: Gary V, absolutely.

Stephanie Liu: He's also been on a lot of TV shows such as Katie Couric and Anderson Cooper. Let me take a look. Oh God. There's Peter Diamandis. Kateryna, so great to see you here. Mitch, I know that you've been doing a ton, so go ahead and fill in the blanks. Let us know what you specialize in and what you've been doing, what you've been up to.

Mitch Jackson: Well, lately, I've been specializing in flying my drone over the Pacific Ocean down at Strands which is between me and you right now, but we're in our 30th year practicing law. I just love expanding our departments into the social media and digital world, meeting people like you, Stephanie, that are doing exciting things on the digital platforms and really showing other lawyers and other professionals how to embrace social, how to share their human side to build relationships, to expand their brands and create a top-of-mind type of presence on a global level. I love that part of what I'm doing.

When I'm not practicing law, when I'm not in court, doing shows like this is fun because, hopefully, we'll be able to help your viewers, we'll be able to answer their questions on how to do business on digital, things they should pay attention to to keep them out of trouble and to help them safely do business for many, many years to come. So, it’s a pleasure to be here. So, I’m ready to answer all the questions that your viewers are going to bring us.

Stephanie Liu: Oh my goodness.

Mitch Jackson: It's going to be fun.

Stephanie Liu: I am so excited for this simply because when I created the Facebook event and I asked everyone, "Hey, do you have any questions," like it was a boom- boom-boom-boom-boom-boom. I was like, "I love all these questions," because I wouldn't know how to answer them and just having you here is going to be amazing. So, the first question that I usually get when it comes to live streaming is “If my show is sponsored, what type of disclosure do I have to give to let people know that it's branded content?”

Mitch Jackson: And that's really important for you to do. That's a great place for us to start. But before we do that, let me walk my talk with you. I'm a California lawyer. Although I'm a very good California lawyer, Stephanie, I'm not YOUR lawyer. I'm not the attorney of all your viewers, so I’m not sharing legal advice today. What I'm doing is simply answering your questions and, hopefully, getting everyone going in the right direction.

So, what did I just do? The first thing I just did is I shared a disclaimer with you, hopefully in a friendly way, but an effective way. There's a reason why I did that because the California State Bar requires me to do that especially when I'm on a broadcast like this that isn't just limited to California. People across the United States, people across the world are watching Stephanie's show right now. So, I want everyone to be very clear about the fact that I'm a California lawyer, but I'm not your lawyer because you haven't retained me.

So, people need to do the same thing. If they're starting the show and that show is being promoted by another company, if that show is being… you are being paid to do a show on behalf of a brand or on behalf of a big company, you have to be clear and concise about disclosing that at the beginning of the show. Those are my thoughts. That's my advice. You want to make sure that the end user, the consumer, your audience understands exactly who's promoting your show, who's branding your show and, frankly, in what capacity are you broadcasting your show. Stephanie, is this your show as an individual or your show on behalf of your company? So, you want to be clear about that right off the top.

Stephanie Liu: Okay. So, for example, I'm speaking at an event on September 16th. So, Femargent, they're launching their own app and it's coming out. And again, I know you're not my lawyer, but they've asked me to do a couple of social media posts to promote the upcoming event. So, I know that if I'm going to do some social media post on Facebook and Instagram, I could always use the #ad or #sponsored to comply with the FTC guidelines. Then, even on Facebook, there is the Branded Content Tool. Is there anything else that I need to do for live streaming?

Mitch Jackson: Yes, there is. And I don't want to be the bearer of bad news but using those hashtags isn't going to cut it anymore. So, under the FTC guidelines and under recent rulings that they've shared, actually a bit more is required by somebody that's promoting a brand of service. And we're talking about influencers, celebrities, or somebody's getting paid to promote somebody else's products or services.

So, the FTC sent out a letter several months ago to some of the major influencers, about 90 different influencers. It let them know that using hashtags like hashtag #sp on Instagram #thanks and then the brand name using the @ symbol, that's not enough. It's not going to cut it. You have to be very clear and precise to the average consumer putting them on notice that you're actually sharing that link, sharing your promotion, sharing your advice on behalf of that particular brand that's offered you some type of consideration whether it's a monetary payment or they're letting you use the product or services in exchange for you promoting it.

Stephanie Liu: Wow.

Mitch Jackson: So, you want to really pay attention to doing more than just sharing a hashtag if you want to play in the safe sandbox. And you did watch me on stage down at Social Media Day talk a little bit about the Fyre Festival. For those of you who aren't familiar with that, that was a big festival, music festival that was promoted on social media. Their influencers are being paid $100,000 for an Instagram post all the way up to $400,000 for an Instagram post. 400 different influencers were involved in this. And it turned out that this festival, for whatever reason, was a complete bust. Large lawsuit was filed. Multiple lawsuits across the world had been filed because of the Fyre Festival. And it comes down to when it affects influencers, they fail to disclose that they are being compensated for promoting this festival.

Now, there's a $100-million class-action lawsuit and multiple other lawsuits out there that have included and named these influencers. So, you want to be careful as an influencer and follow FTC rules. I just shared before we went live, Stephanie, to make it easy for everyone, on my Twitter feed, I shared the link to the FTC rules which clearly lay out what we need to do as influencers, as brand ambassadors, as promoters, as social media agencies and as brands. What do we need to do to comply with FTC rules?

The Bit.ly link for those of you who just want to write it down right now, it's Bit.ly. It's B-I-T.L-Y/mitch-ftc, all in small. So, go to bit.ly/mitch-ftc or my Twitter feed at Mitch Jackson and read these rules and regulations so that you don't find yourself in deep legal doodoo.

Stephanie Liu: Oh my goodness. You actually don't see the comments right now, Mitch, but everyone's like, "Whoa. What? You have to go above and beyond the hashtags?!” I'm getting some exclamation points.

Mitch Jackson: That's why ... People say, “Well, I didn't know that," or "It wasn't my intent to mislead anybody." And I get that. But the reality is a mistake as to what the law is is not a defense. So, what we're seeing, Stephanie, what you and I briefly talked about before we went live is that the law is catching up to social media and digital and live-streaming. We're way behind when it comes to VR, AR, MR and artificial intelligence.

Stephanie Liu: I was like “I haven’t even dived into that.”

Mitch Jackson: What everyone needs to know is that a lot of us are having fun and we're adding major value to our communities. You and I were big fans of social and digital live-streaming. Having said that, this is big business for a lot of us and our state and federal governments are understanding and appreciating that now. And what's happening now is they're requiring the users of social and digital to start following the rules, the regulations at both the state and federal levels.

Also understand, everyone, that when we're sharing our products and services, we're doing so on a global basis. So you're not just subject to state and federal laws. You're subject to international laws also. So, I think a good place for everyone to start when it comes to influencers and celebrities promoting other people's products and services, even on an informal basis, would be that FTC document that we shared a few minutes ago during the show.

Stephanie Liu: Yeah. Absolutely. Wow. So, even when it comes to, let's say, doing a live stream but, let's say, you're a wellness coach and you're giving advice on how to be much more healthier and everyone has their own medical conditions and things of that sort. I would assume you'd have to give some type of disclosure or disclaimer as well, right?

Mitch Jackson: I would. I mean, this question came up to me two years ago at the Periscope Summit in San Francisco. A local psychiatrist, a psychologist who gives online advice asked me that question from the audience. My suggestion would be is that whatever rules and regulations you're required to follow in your state, if you're a doctor, if you're a therapist, a psychiatrist, a psychologist or a dietician, a health professional, whatever it might be, what rules and regulations control, what you say and do offline. Figure out what those are. You need to know what those are. That's kind of important.

And then, apply those rules online. If there are no specific rules, I would strongly suggest that you have some kind of disclaimer like we did at the beginning of the show. “We are talking about different foods, different exercise. Before you do anything that you hear about during our show, consult with a physician, and make sure you're in good health. Everyone's different. Everybody reacts differently to different foods and different exercises. We want to make sure that you're safe and that you enjoy the benefits that our program offers. So, make sure you see a doctor, and get checked out before you jump in and participate in our…” and then whatever your product or service is, right?

Stephanie Liu: Yeah. I'm laughing right now. I'm laughing right now because Patti had left a comment. She's like, "Cover your ass," basically pretty much.

Mitch Jackson: You know what? This is the CYA show. Exactly. That was like the first term, Patti, I learned in law school. CYA and get it in writing. Do it on a video so that this video can be played later on if a claim's brought. This is great evidence right here. So, if you take the time to be clear and concise and protect everyone's best interest, that's how you stay out of trouble. And that's what we all should be doing anyway, right?

Stephanie Liu: Yeah. Exactly. So, I would imagine that people that have already done some live streams, they could always go back. I'm assuming that they could go back and edit the show notes to say, "Here's the disclaimer. Here's who was sponsored by ..." Yeah?

Mitch Jackson: Yeah, I know. It's an interesting journey because it would be a very good idea to make sure that whatever you have to do in your profession and your occupation in your industry, you go back if you can, and include that disclaimer. Include that waiver. Really, a good idea if you could do it, but it's oftentimes easier said than done, right?

Stephanie Liu: Yeah. That's very true. Hire a virtual assistant, you,guys. Copy paste. Copy paste all of that.

Mitch Jackson: What's funny is sometimes there's so much information that it can be overwhelming. So, people experience paralysis by analysis. There's so much to do. What I really like people to do is from this point forward, maybe follow some of the tips and suggestions that we're talking about from this point forward. And like you said, maybe going back in time, removing content that's inappropriate or doesn't comply with the law, or supplementing that content if you can with waivers and disclaimers and things like that.

One of the biggest problems I see, Stephanie, and we need to talk about it, it's the lack of online businesses, of online entrepreneurs doing business as a corporation or limited liability company.

Stephanie Liu: Yes. I love that you segued right into that.

Mitch Jackson: But it's related too. It's very related to what you just said because if you ... Look. Do you watch Game of Thrones by any chance?

Stephanie Liu: Yes.

Mitch Jackson: Okay, so do I and our whole family's hooked on it. And in the northern kingdom which is House Stark, I believe, there's an ice wall. And it protects the citizens from the White Walkers, from the evil White Walkers, for those of you that don't watch the show, from getting into the communities and working their way south through all of the kingdoms. And Jon Snow is in charge of protecting the community with this wall. This wall's big. It's huge. And it protects the good guys from the bad guys. I want everyone to think about their corporations and their LLC's as being that white wall.

Stephanie Liu: Oh my god. I love that. That is the best analogy. Can I just give you a high five real quick? That was legit.

Mitch Jackson: Absolutely. You know, I want everyone to protect themselves like House Stark does. There's a lot of things that happen in business. By setting up an LLC or a corporation, you're separating your business liabilities from your personal assets. And there are a lot of other benefits that a corporation or an LLC can bring to your online business. I always suggest that people consult with a qualified lawyer in their state because each state is different, and each industry is different.

For example, as a lawyer, my requirements for setting up a LLC or a corporation are different than maybe what yours are in social media and marketing. So, consult with somebody in your state and find out what you need to do. Set up that white wall, that big ice wall, between the good guys and the bad guys. And the reason it’s really important to do this is that traditionally offline before digital companies came along, the average business was involved in a claim or a lawsuit about three times during its business career.

That's three times too many, but it's a reality. From what I've seen with digital, from what I've seen online with the way people are doing business and it's so easy to send a DM and click a text message and create a company and create a partnership, it's so easy to do everything that we're talking about that mistakes are made. And partnerships are falling apart quickly and easily.

I'm expecting the online business litigation to be substantially more than that three times in the offline world. I'd say it's probably going to be 10 times that online. So, it’s really important that people set themselves up as corporations and LLC's to protect themselves, to protect their families. And then, those entities offer a multitude of other benefits when it comes to doing business, things like maximizing your retirement plans, enabling you to get venture capital funding much easier, and everything else in between.

Stephanie Liu: What's the, what's the biggest difference between an LLC and S Corp, aside from price? I feel like that's like the big thing that most people get in the Business for Dummies book. “LLC or an S Corp?” is like “LLC is cheaper than an S Corp.”

Mitch Jackson: Right. Well, it depends on the state. It depends on how you set it up. Little secret just between you and me, I think companies like Legal Zoom do a really good job of helping consumers, of helping entrepreneurs set up their corporations and their LLC's. And I don't think the price difference is that different. The secret isn't in how you set your LLC or corporation up. It's making sure you continue to run your business properly from that point forward.

I see a lot of online businesses set theirs up but then they don't run their business like a limited liability company or corporation. In other words, when you're selling products and services, you have to let your consumer know, your viewer know that you're doing a live stream on behalf of the XYZ company as opposed to you individually.

So, it’s really important that once you set these entities up, you then run your business as a business. You separate your bank, your personal bank account, from your business bank account. You don't commingle your personal funds and assets with your business assets. When you sign documents, you make sure whether it's online or off that you're signing it on behalf of the president of the XYZ corporation or managing member of the XYZ, LLC. Just make sure that the end user, whoever you're talking to or negotiating with, understands that they're dealing with you on behalf of a company as opposed to you as an individual.

Stephanie Liu: Okay, this is all amazing advice. I'm sitting here with my mouth shut. Because I'm like, "Yes. I have to take this all in. I'm going to replay this." And I know that viewers are going to be like, "How do I talk to you, Mitch? How do I… Who do I talk to, where do I start?” So, where is the best place for them to reach you?

Mitch Jackson: So, I think the best place and the most entertaining place other than my boring traditional law firm site which works really well for my day job which is a full time trial lawyer, and that would be streaming.lawyer. Streaming.lawyer is a blog that I set up a couple of years ago, in fact, before my first appearance at Social Media World down in San Diego. And it was right when live streaming came out.

I grabbed streaminglawyer.com and streaming.lawyer and set up a free WordPress site where I share all of my digital related tips, streams, social media posts and things like that. In fact, this afternoon, I just shared some really exciting news. My friend, David Meerman Scott, just came out with his sixth edition. Yeah. Keep going down.

Stephanie Liu: Yeah. There it is.

Mitch Jackson: Sixth edition of the New Rules of Marketing and PR. Last year, I was in the fifth edition that had to do with news jacking which is a great way to build your brand and market your practice. But this year, I wasn't in that particular chapter, but he had a chapter set up for blogging. I think he was talking about the Streaming Lawyer website and how you can use blogging. And it's a new blogging. It's not traditional written post. It's sharing live streams. It's sharing photographs. It's almost like having an active Instagram account on your website page and adding value to your community.

So, that just went up today and I'm really excited about it. I forgot what the original question was, but the point is that everything that he shares in his book is what we're talking about today. There's so much more than just clicking and putting up a product and service and expecting everything to go well. You got to run these things, our online businesses like businesses.

Stephanie Liu: That's so true. It's so funny like everyone's leaving comments right now. It's like, "I'm in the car, but I'm going to ... As soon as I'm done with my trip, I'm going to re-watch this and I'm going to check this out." So, shout-out to Mark for putting in streaming.lawyer. Thank you so much, we appreciate that.

Mitch Jackson: Thanks, Mark.

Stephanie Liu: Jenny is hopping in too. She's a best-selling author. I know that she's handling business all over the world as well. And so, she’s getting a ton of value, and so is Samantha. So, let’s see here. I do actually have a couple more questions if that’s okay with you, Mitch.

Mitch Jackson: Sure. I've got all afternoon.

Stephanie Liu: I know. I was like I'm going to take up this time.

Mitch Jackson: Let me give Mark a big shout out. Thanks, Mark. I appreciate it.

Stephanie Liu: Yeah. Okay so, one of my good friends, Kari like Safari. You probably know her. She always goes to all of the social media events here in San Diego. And so, she has a bunch of events like in-person events. And sometimes they like to videotape the attendees. What type of notice needs to be put out there to have permission to use their likeness, let's say, in a promotional video down the line?

Mitch Jackson: Sure. That's a big issue right now. And it kind of falls under the privacy discussion. In other words, when it comes to live streaming, who do you have the right to live stream or video? Where do you have the right to live stream and video? So, let’s take a step back. If you're in a public place and there's no reasonable expectation of privacy, you can video and live stream pretty much anybody or anything, right?

There may be an exception when it comes to minors. I always tell my clients get a written release, a properly prepared written release when minors are involved. But let's say inside of the example you just gave me, it's a private conference, a private convention where people are paying you to go in. I think that's what you're asking me, and so does she have the right to film people in the audience and then share that content on the digital platforms let's just say without their permission?

There's an issue there. I don't know, by buying a ticket and agreeing to show up, are you also agreeing to allow your image especially if you're someone that's well-known that's sitting in the audience and an individual knows that by taking your image or video of you and putting it on social and tagging you, that's going to bring more people to his or her website. We're talking in generalities right now. Nobody is specific. You know, is that okay? Is that permissible?

So, what I would suggest is if you're doing these events and these conferences in the Terms of Service, when somebody buys a ticket, when somebody enters their name and address to attend to your event, if it's a free event, for example, have some waiver disclaimer as part of the checkout process where if you want to have the right to use photos and videos, then by them purchasing the tickets or by them signing this document digitally, they're giving you the right to use any photos or videos or live streams that are done within the event.

I would highly recommend that you get some type of digital written permission and it can be two or three sentences. It doesn't have to be too elaborate. But when you start using that, that type of content. Now, that's the very conservative way of going about things. There's a good argument that by being there, by participating, it's implied that you understand that you'll be part of everything we just discussed. But what I'm finding is that there's not always a meeting of the minds because this is all new. Everything we're talking about is relatively new.

So, to avoid misunderstandings, to avoid unnecessary legal traps, try to get permission through an entry form, through a ticket sale, through somebody walking into the room. You know, try to get permission before you share somebody's image or video on your conference-related website or social platforms.

Stephanie Liu: Interesting. Well, what about San Diego Comic-Con? You know San Diego Comic-Con. You watch Game of Thrones. You know that it's a big deal. There is all of these experiential events, but all I really saw was just signage that said if you're entering this area, you're agreeing to be filmed or have your photo taken that could be used later down the line. Is that something that other people can do as well for their free events?

Mitch Jackson: Yes. I would be okay with that. It's not as clear and concise with somebody. I'm able to look back. Stephanie, see your ticket purchase to come into my conference. In that ticket purchase, there's that acknowledgment of waiver. Then, we're on a clear legal grounds. The signs that you're describing, what if that sign wasn't up during the Thursday morning or what if the signs weren't at every single entry into the conference facility? It just creates issues and questions. And I'd like to see everybody avoid putting themselves in a questionable position.

So, I guess the answer your question is the more clear you are as to what the rights are of participants at your event, the better off you're going to be. And that's probably the safe way to do things.

Stephanie Liu: That's very true. Okay, so I have another question for you. Forgive me because I did not email this to you. This just came into my head right now. But if you have a website there's certain legal things that you need to have on there such as a privacy policy and how their data is going to be used if they're doing let's say Facebook Ad retargeting. Am I right?

Mitch Jackson: Yes. It depends on the industry. It depends on the profession, the product/service, it depends on the state, it depends on federal law. Let's just say you're in California and you're selling surfboards. Then, it would be very prudent to have a TOS agreement in terms of service agreement, a privacy policy, a disclaimer on your website like most of us see each and every day.

If you're a physician in California and you're offering medical services or medical devices, the physicians are regulated by state agencies and they require additional language on their websites, on their blogs and, oftentimes, in their social media post.

If you're a police officer and you're doing what our dear friends Mike Byers and Mark Marty are doing with using social media to connect the police department with the local community and to show their human side and actually improve the quality of police services, well there are certain police regulations that arguably require Mark and Mike to save the data that they're sharing on social media under the law enforcement regulations, something that you and I aren't required to do, for future use.

So, that type of information and disclaimer probably also needs to be contained at the website notifying the consumer that you're dealing with a police agency. And if you want copies of this stuff, it's available at the blog, the ABC website. It depends on what you do in what state you're in. Each state is different.

Stephanie Liu: Wow. This has been so informative. I'm just at that point where I was as soon as we're done with this, it's like, "Okay. I need to go on the phone with someone and make sure I have all of this stuff checked off.”

Mitch Jackson: It's exciting. I mean, there’s so much ... you know, look. Here's the secret to having a successful online business and do everything that we're talking about I think the secret is to build good relationships, to practice the golden rule, to never dance in the gray area when it comes to what you're representing or what your products or services can or cannot do, to be clear and concise, to be open and transparent with respect to who you are and what you're doing, and to always do business as a corporation or a limited liability company, and to always when going live, if it’s a live stream, or when posting on social, to be very clear that your content is being posted on behalf of your company and not you as an individual.

If you follow those tips, I think it's going to help you avoid 99.99% of all the legal problems out there.

Stephanie Liu: Yeah. I love that. And Bridgetti Banda, she just quoted you. She said “Don't dance in the gray area,” which is fantastic, that’s really great advice.

Mitch Jackson: But never stop dancing. Life’s too short. We've always got to keep dancing. We've always got to keep making every day our masterpiece. Listen, when I have entrepreneurs ... By the way, Stephanie, I've helped hundreds of companies, hundreds of entrepreneurs start their businesses, handle litigation and trial problems. So, I’m speaking from experience. I want this to be put into the right context, right?

And even having said that activity and engagement and taking action, that's key to being successful as a new business and as an entrepreneur. And what I've seen is entrepreneurs not do anything because they can't afford to start that corporation or they can't afford to have somebody prepare the paperwork that we've talked about. So, nothing ever happens. And I get that, I'm one of those lawyers that gets that. I’m the first generation lawyer, I love business and marketing.

One of my best friends said, "Mitch, you lawyers, you always get in the way of me being successful.” And I get what he's saying. I understand what he's saying. What I tell people is “Listen, I really want you to take action. That's a great product or service. Put it out there in the marketplace. Do what you need to do to get your company started as soon as you can afford to incorporate or form an LLC, as soon as you can afford to get the documentation that we've talked about, waivers, releases, indemnity agreements, get these things together.”

And most of them are on the Internet. This isn't something that really costs money. It just takes a little time to put them together. Incorporate that into your business plan, into your business model and keep moving forward on a daily basis. The companies that I've seen do that are the ones that inevitably experience success down the road, the companies that don't do anything because they don't know where to start… You know what? Nothing ever happens.

So, the advice I'm sharing is a lot of legal some entrepreneur, some business and some practical advice because nothing replaces activity, engagement, and hustle. And if you're doing those things and then you protect yourself by staying out of the gray area and being prudent when it comes to legal decisions, that's where the magic happens.

Stephanie Liu: See. I love this. I love this interview as well because when it comes to all this legal jargon and talk, it could be very scary for new entrepreneurs that are just starting out in their business and they don't want to be dissuaded. But just having you and you're able to break it down into layman's terms and it's comforting. It's comforting. If anything else, it's like, okay, all right. I could do this.

Mitch Jackson: And that's good to hear and listen. I will say that I think any company that's starting off when you're able to get a good CPA involved in your business in your life that's really important, when you can form a good relationship with a lawyer to help with some of the legal challenges that come along and everything else we talked about, those are some foundational elements that you have to put into place so you can build your empire, your dynasty that ice wall separating the White Walkers, from all the other kingdoms. You have to build that foundation before you do anything else.

You mentioned Gary Vaynerchuk at the beginning of the show. I know Gary. We've done much shows together. He's the first to tell you that the lawyer he has at VaynerMedia is one of the most important people in his world, okay? For those of you to look up to Gary and admire what he's done, just keep in mind that he also understands when it's important to cross his T's and dot his I's. And if you're using him to model your entrepreneurial journey, then understand the importance of at least complying with your legal obligations so that you can focus on doing good things in saving the world with your products and services and avoid people like me in court because that's no fun, right? Unless you’re me, because I like doing that.

Stephanie Liu: Oh, I have one last question for you. This is from Patti Villalobos. So, if you're a health coach, the scenario is that if you're a health coach and you're live streaming and you're talking about wellness, right? This is different from what we talked about earlier, but someone discloses their own medical condition, are we then ... Is HIPAA not an issue at that point?

Mitch Jackson: HIPAA is a rule. It's a law, a federal law, that protects the confidential medical information of patients. I'm making a very complicated concept simple, but that's basically what we're talking about here. And that's a right that the patient can waive. It's like the attorney- client privilege. If a patient or a client shares confidential information, then there's no waiver by the health coach, by the doctor, by the psychiatrist, okay? It's your privilege. It's your waiver to make.

I would suggest that in services like that, if it's being offered to a live stream or a website, something like that, you don't have in your terms of service agreement, have in your disclaimers a paragraph that talks about HIPAA rights, and how you respect your client, your patient's privacy rights and that they need to understand that if they disclose this information to you, be clear and concise as to what you will or will not do with that information. It's one thing for somebody to disclose it to you on a private chat. It's another thing for you to then take that information and share it in a public blog post. That would be a no-no, right?

Stephanie Liu: Yeah.

Mitch Jackson: And so, everyone needs to understand all the social platforms that we use, YouTube, Facebook, Instagram, Snapchat, whatever it might be. Your ability to use these platforms are controlled by the terms of service agreements, the TOS agreements. Read those agreements. When you post your video to YouTube, YouTube can pretty much do whatever it wants with that video. I'm okay with that. That's the arrangement that they've set up, but a lot of consumers aren't aware of that. And they get bothered when they see their videos on other people's websites.

And if you've enabled the share and embed function of YouTube, then according to its TOS agreement, you're giving permission for third parties to use that content. And you may not like the content or where those your content's being spared, right?

Stephanie Liu: Yeah. And I think you and I are in the same Facebook group because I remember hearing …

Mitch Jackson: It just came up. That just came up. That's one situation where if you understand the extent of the TOS agreements, then you know what you're stuck getting yourself into, okay? The other situation I've seen come up recently, Stephanie, is with third-party companies primarily overseas, primarily China and Russia, completely scraping somebody's online websites, blogs and downloadable courses. And you can't even tell that you're not at the right site.

Obviously, all of the purchases go to this third party. And that's obviously theft, fraud. It's a crime on any state, federal or international level, but it's really difficult to pursue. It's really difficult to hold these wrongdoers accountable for obvious reasons.

Stephanie Liu: I'm laughing because we're getting some sad faces from people like, "Oh no. I can't believe that's happening.”

Mitch Jackson: Oh, it’s happening to some of the biggest online guys and gals you guys know, because I'm the one that gets the phone calls.

Stephanie Liu: I was like, "Oh my gosh, I'm getting angry faces just flying across the screen and sad faces.”

Mitch Jackson: There should be. There should be because it's not okay. What we all need to do as consumers is we need to look out for each other, especially on the social platforms. We need to and I just shared a post the other day and it was a repurposed post from a year ago, but we need to do the right thing on social media. We need to have each other's backs. We need to hold each other up on our shoulders. We need to do everything we can to do the right thing.

And when we see these types of things happen, we need to talk about it and we need to hold the wrongdoers accountable. I don't want to spend my time doing any of that. I wish it wasn't happening, but you know what? I'm sure that Jon Snow wished that the White Walkers weren't on their way moving south and that they didn't have to man the wall, right?

Stephanie Liu: Yeah.

Mitch Jackson: But sometimes, you got to do what you got to do. So, I guess in wrapping up, I'd like to just remind everybody to watch out for all the digital White Walkers out there and keep your wall high, strong and manned. And when it's all said and done, you'll be able to continue doing business for a long, long time the digital platforms without having to have someone like me step in and help you with any problems.

Stephanie Liu: Oh my goodness. Wow. Mitch, thank you so much. This was just an eye-opening experience. And it's funny to see the reactions from people because I feel like all of the emojis that flew by our mind the whole entire interview like, oh that's cool like oh no, that's scary, oh gosh. All of this is so informative. Thank you so much. Thank you Angela, Claudia, Bridgetti, everyone that joined in asking live questions. Ross Brand is even here. You know Ross, Livestream Universe.

Mitch Jackson: I know Ross and Eric who shares some awesome photographs from Northern Arizona. He's a gifted photographer and a professional but he said something, if you don't mind, Stephanie, because Eric was joking. He says, "You know you've arrived when you get scraped." And I get that but one of the things, and it's a different perspective on doing business now. I encourage my clients not to get stressed out when it comes to somebody else using their copyrighted or intellectual property protected content.

A lot of people get crazy. It's like, oh my goodness, they're using my logo. I'm like where are they using it? Well, they're using it on their blog to talk about my products and services and they're saying really nice things, but they didn't ask me for permission to use my logo, okay? And there's a new mindset out there, and the mindset that I share with my clients is encourage your clients, your customers, your audience, your tribe, people you meet on digital, encourage them to share your content because they are bringing new eyeballs back to your blog, your site, back to your company, and that’s a good thing.

And I think if we all have this mentality and not get so worked up about traditional offline copyright, intellectual property issues and instead embrace and share good content, most of my clients have taken my advice. They said, "Okay. We're not going to file a lawsuit." In other words, geez, we never looked it up. Stephanie's actually going out of her way to help us toot our horn. That's a really good thing, right?

Stephanie Liu: Yeah.

Mitch Jackson: On the other side of the coin, if you don't have someone's permission to use their content, their photographs, their videos, music in the background during a live stream, then don't use it, okay? Always get the creator's permission if you can before ... Well, always get the creator's permission before you use somebody else's content because if you rely upon the fair use doctrine which is an exception under intellectual property rights that says if I'm using Stephanie's content for a news story, to teach in the classroom, for criticism or commentary, there's an argument. And it's a gray area that I have the legal right to use her copyrighted material in my blog post, in my live stream.

The reality is though that's a gray area and I certainly would never recommend that a client rely upon the fair use doctrine with hanging their hat on being able to share other people's protected content. So, just be careful. We didn't touch upon that. I wanted to bring it in because that happens to be the biggest problem that I see on social media right now is copyright protection, intellectual property rights. And if anybody wants more information, Stephanie, about this, if they go to streaming.lawyer and they type in “copyright” in the search bar, there's a couple of easy to read and easy to digest up posts there that lay out what you probably need to know as an online business or entrepreneur when it comes to copyright material.

I've tried to, you know, make it easy for people to protect themselves and learn what they should or shouldn't do when it comes to doing business on the digital platforms.

Stephanie Liu: Yeah. Oh my goodness. This is so helpful. I pulled it up on the website, so it's floating behind us right now.

Mitch Jackson: That is so cool, you are so good at this. This is what I love about these calls. This is so cool.

Stephanie Liu: It's so much fun.

Mitch Jackson: You know what, and I’m looking at Barb Tomlin, things that she's doing, and Claudia Santiago with her music online. I mean, there’s so many really cool people that are sharing intellectually protected content on their shows, on their platforms that I happen to know they want us to share it with the world. I love helping other people sing their song. That's what makes getting up in the morning really, really exciting. The problem is if you share someone else's song and they don't want you to share it, that's where you're going to have a problem. So, just be careful out there, and get everything in writing and you should be okay.

Stephanie Liu: Very true. So, having said that, if you found this episode to be extremely helpful, go ahead and share this out. Tag a friend, anyone that's starting their own entrepreneurial journey. Go ahead and share this. If you want to be notified the next time that Lights, Camera, Live is on, go ahead and just type one word only, “subscribe”. I actually played around with chatbots, Mitch. I think you'd be very impressive. So, go ahead and type in “subscribe.” Then, you'll go ahead and get a notification every time that we go live. Donna says that we're frozen, so I hope that will fix itself right now.

Mitch Jackson: We're good at my end.

Stephanie Liu: Okay, great. Kevin, he shared. Thank you, Patti, for subscribing. Then, again if you want to learn more about Mitch by all means, head on over to his website, it is chock-full of information - streaming.lawyer. You also have a podcast too, right, Mitch?

Mitch Jackson: I do. I dipped my toe into the podcasting world. I've been repurposing some old content with Seth Godin and Gary Vaynerchuk and Ryan Solis, James Altucher, some really cool … So, that’s mitchjacksonpodcast.com which is also available through streaming.lawyer. Thanks for bringing that up. I would have brought that up. I already forgot all about it but, Stephanie, thank you because I'm enjoying it. Podcasting is fun.

Stephanie Liu: You know, people have asked me to podcast too. I was like, "I don’t know." I'm very much like I like the visual. I like the green screen. I like that I can throw this up behind you.

Mitch Jackson: I do too. I do too, but there's a whole new audience. For example, this show right here if you rip the audio and convert it into a podcast, there's a whole new audience out there that ... They need to know more about you and me.

Stephanie Liu: That's very true. You might actually just …

Mitch Jackson: I'm just saying.

Stephanie Liu: I'm going to do it. I'm going to do it. It's out there in the world. Alright well, thank you so much, Mitch. I'm going to go ahead and play our outro song. I want to pull that back up and say bye to everyone. Thank you all so much for tuning in!

Mitch Jackson: Thanks. I appreciate it very much.

Stephanie Liu: Bye. Bye, Jen. Bye, Carlos. By, Bridgetti. Bye, Ermer. Take care, everyone.

ABOUT MITCH JACKSON

When Mitch Jackson is not trying cases, he uses social media and technology to help good attorneys become great trial lawyers and to show everyone (not just lawyers) how to effectively communicate and negotiate. Mitch is an early adopter of live streaming and has spoken at the New York, San Francisco, Los Angeles Periscope Summits (Summit Live), and Social Media Day San Diego.

Mitch has been profiled in David Meerman Scott’s last two marketing books and will be sharing the stage with David at an upcoming Tony Robbins Business Mastery Event in Las Vegas before 2,000 people. In September he'll be in New Orleans at the Clio Cloud Conference sharing his thoughts from the stage about how lawyers can and will use VR, AR, MR, and AI, in trial. He’s also a contributing consulting expert in the California State Bar’s "Effective Introduction of Evidence in California- Chapter 54 Electronic and Social Media Evidence" and most recently, consulted on “Shame Nation” a highly anticipated new book by Sue Scheef with the forward by Monica Lewinsky, about the moral and legal issues surrounding online hate.

Mitch has appeared on live video shows with Katie Couric, Anderson Cooper, Seth Godin, Peter Diamandis, and Gary Vaynerchuk, and his weekly live video show, TheShow.live, is one of the longest running weekly live video shows on the Internet. You can connect with Mitch at Streaming.Lawyer.

IN THIS EPISODE, YOU'LL LEARN

  • Legal Ins and Outs of Live Streaming

  • The Benefits Between an LLC vs. S Corp

  • Quick Tips for Obtaining a Trademark

What I love most about Mitch Jackson is that he makes it easy for people to protect themselves and learn what they should or shouldn't do when it comes to doing business on digital platforms. And warning, after this interview, you just might feel the same way about Mitch.

Now before we get started, it’s important to note that Mitch Jackson is an amazing California lawyer but he is not YOUR lawyer.

As a guest on Lights, Camera, Live, Jackson is not the attorney of our viewers or readers, so remember that he is not sharing legal advice today. What he offers in this interview are answers to my questions in order to hopefully get everyone pointed in the right direction.

Now let’s step into the spotlight with Mitch Jackson on the legal ins and outs of live streaming...

If a live stream is sponsored, what type of disclosure do live streamers legally have to give to let people know that it's branded content?

Jackson advised that when live streamers are promoting a show on behalf of a brand or company, they have to be clear and concise about disclosing that at the beginning of the show.

You want to make sure that the end user, the consumer, your audience understands exactly who is promoting your show,
who is branding your show and, frankly, in what capacity are you broadcasting your show.
— Mitch Jackson

He went on to explain that this disclosure should be clear at the very beginning of your broadcast.  

Are you disclosing if your show is being broadcasted

as an individual or on behalf of a company?

Tell me in the comments below.

Does leaving the phrase “#sponsored” in my live stream description keep me out of legal trouble?

Influencer marketing is all the rage right now. If you’ve worked with brands before, chances are you were advised to include the hashtag #sponsored or #ad in your copy to abide by FTC guidelines but the truth is, you can still wind up in legal hot water.

“The FTC sent out a letter several months ago to some of the major influencers... It let them know that using hashtags like #sp on Instagram or using #thanks and then adding the brand name using the @ symbol, is NOT enough,” Jackson said. “You have to be very clear and precise to the average consumer putting them on notice that you're actually sharing that link, sharing your promotion, sharing your advice on behalf of that particular brand that's offered you some type of consideration whether it's a monetary payment or they're letting you use the product or services in exchange for you promoting it.”

When was the last time you reviewed the

Federal Trade Commission (FTC) Endorsement GuidelineS?

Click here to read more from Mitch Jackson on Hashtags No Longer Protect Influencers. Actually, they never did!

Mitch made a really great point that as a live streamer, your videos could attract viewers from all over the world. As a result, you're not just subject to state and federal laws, you're subject to international laws also.

If you’re a live streamer working with brands, you have to go beyond hashtags to abide by FTC regulations to stay out of legal trouble.
— Stephanie Liu

How can I protect myself if a live stream already aired and I didn’t include the disclaimer in the video?

“Go back if you can, and include that disclaimer,” Jackson advised. “Maybe going back in time, removing content that's inappropriate or doesn't comply with the law, or supplementing that content if you can with waivers and disclaimers and things like that.”

For Lights, Camera, Live, our team went back and added the phrase, “This show is sponsored by Stephanie Liu Marketing, LLC” in the video description.

“When you're selling products and services, you have to let your consumer know, your viewer know that you're doing a live stream on behalf of the XYZ company as opposed to you individually,” added Jackson.

When we’re filming individuals at a conference or for a live stream and want to use their likeness in a promotional video, what type of notice do we need to have?

With billions of smartphones sold every year, people literally have a mobile production studio in the palm of their hands. As conference attendees, sometimes we can be recorded in the background of someone’s video.

“If you're in a public place and there's no reasonable expectation of privacy, you can video and live stream pretty much anybody or anything, right?” said Jackson. “There may be an exception when it comes to minors. I always tell my clients to get a written release, a properly prepared written release when minors are involved.”

What type of notice do conference organizers need to give attendees if they plan on filming the event?

“What I would suggest is if you're doing these events and these conferences in the Terms of Service, when somebody buys a ticket, when somebody enters their name and address to attend your event, if it's a free event, for example, have some waiver disclaimer as part of the checkout process where if you want to have the right to use photos and videos, then by them purchasing the tickets or by them signing this document digitally, they're giving you the right to use any photos or videos or live streams that are done within the event,” suggested Jackson. “I would highly recommend that you get some type of digital written permission.”

What’s the secret to building relationships when doing business online and in person?

“Never dance in the gray area when it comes to what you're representing or what your products or services can or cannot do, to be clear and concise, to be open and transparent with respect to who you are and what you're doing, and to always do business as a corporation or a limited liability company, and to always when going live, if it’s a live stream, or when posting on social, to be very clear that your content is being posted on behalf of your company and not you as an individual.” - Mitch Jackson

Now that you're confident that your Facebook Live Stream is 100% legal, let me teach you 15 new ways you can make your live stream even better!


 
 

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